Citation Nr: 0408435
Decision Date: 04/01/04 Archive Date: 04/16/04
DOCKET NO. 03-01 152 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Phoenix,
Arizona
THE ISSUE
Entitlement to service connection for bilateral plantar
fasciitis, also claimed as a heel bone condition.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
The veteran and his spouse
ATTORNEY FOR THE BOARD
C. Kang, Associate Counsel
INTRODUCTION
The veteran had active duty from August 1973 to August 1976.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a February 2002 rating decision of the
Phoenix, Arizona, Regional Office (RO) that denied service
connection for bilateral plantar fasciitis. In July 2003, a
hearing was held before the undersigned Veterans Law Judge
(VLJ). The veteran has been represented by the Disabled
American Veterans throughout this appeal.
The issue of the veteran's claim of entitlement to service
connection for bilateral plantar fasciitis is REMANDED to the
RO via the Appeals Management Center (AMC), in Washington,
DC. The Department of Veterans' Affairs (VA) will notify the
veteran if further action is required on his part.
REMAND
The veteran's personnel records show that he was a member of
the Arizona Army National Guard between 1982 and 2000. At
the July 2003 hearing before the undersigned, the veteran
related that his bilateral plantar fasciitis had its onset
during active duty for training with the Arizona Army
National Guard and that he was on active duty for six months
as a member of the Arizona Army National Guard during the
Persian Gulf War. The veteran's periods of active duty,
active duty for training, and inactive duty for training with
the Arizona Army National Guard have not been verified.
A September 2001 VA letter conveys that the RO attempted to
obtain the veteran's private medical records from A. Posadas,
M.D. The physician, however, did not correspond to the RO's
request. At the July 2003 hearing, the veteran indicated
that Dr. Posadas relocated to another office. The Board
finds that the RO should send another VA letter to Dr.
Posadas requesting the veteran's private medical records. VA
should obtain all relevant VA and private treatment records
that could potentially be helpful in resolving the veteran's
claim. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990).
The veteran has asserted on appeal that the physical rigor of
the Arizona Army National Guard's Army Physical Fitness
Training contributed to his bilateral plantar fasciitis.
Evidence in the claims folder shows that the veteran failed
the running portion of a diagnostic physical training test.
The folder also includes a statement in response to this
failure indicates it was caused by a heel spur on his left
foot, and a June 1999 letter from Dr. R. E. Quint relating a
three-year history of exacerbations and remissions of
symptoms related to plantar fascia. The veteran has not been
afforded VA compensation examination. Given the veteran's
assertions in this context, an evaluation to determine the
etiology of his bilateral plantar fasciitis would be helpful.
VA's statutory duty to assist the veteran includes the duty
to conduct a thorough and contemporaneous examination so that
the evaluation of the claimed disability will be a fully
informed one. Green v. Derwinski, 1 Vet. App. 121, 124
(1991).
Under the provisions of 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b), VA is required to inform the veteran (1) of the
information and evidence not of record that is necessary to
substantiate his claim, (2) the information and evidence that
VA will seek to provide, (3) the information and evidence
that the veteran is expected to provide; and (4) notice that
the veteran is to provide any evidence in his possession that
pertains to his claim.
The Veterans Claims Assistance Act of 2000 (VCAA) notice
issued to the veteran is deficient. VA failed to inform the
veteran of the information and evidence that VA will seek to
provide. VA also failed to inform the veteran that he should
submit any evidence that pertains to his claim. The United
States Court of Appeals for the Federal Circuit has
invalidated the regulations which empowered the Board to
issue written notification of the VCAA to veterans. Disabled
Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339,
1348 (Fed. Cir. 2003).
Accordingly, this case is REMANDED for the following action:
1. The RO must review the claims file and
ensure that all notification and
development action required by the VCAA
is completed. In particular, the RO
should ensure that the notification
requirements and development procedures
contained in 38 U.S.C.A. §§ 5102, 5103,
5103A, 5107 (West 2002); 38 C.F.R.
§§ 3.102, 3.159, 3.326(a) (2003) are
fully met.
The RO must convey (1) the information
and evidence not of record that is
necessary to substantiate the veteran's
claim; (2) the information and evidence
that VA will seek to provide; (3) the
information and evidence that the veteran
is expected to provide; and (4) notice
that the veteran is to provide any
evidence in his possession that pertains
to the claim. Duplicate copies of
evidence currently in the file need not
be submitted.
2. The RO should then contact the
National Personnel Records Center and/or
the appropriate service entity and
request that (1) it verify the veteran's
complete periods of active duty, active
duty for training, and inactive duty for
training with the Arizona Army National
Guard and (2) forward all available
service medical records associated with
such duty for incorporation into the
record.
3. The RO should then contact the
veteran and request that he provide
information as to all treatment of his
bilateral plantar fasciitis, including
the address and approximate dates of
treatment from A. Posadas, M.D. Upon
receipt of the requested information and
the appropriate releases, the RO should
contact Dr. Posadas and all other
identified health care providers and
request that they forward copies of all
available clinical documentation
pertaining to treatment provided to the
veteran. All evidence obtained should be
associated with the veteran's claims
folder.
4. The RO should schedule the veteran for
VA compensation examination to determine
the current nature and etiology of his
bilateral plantar fasciitis. The
examiner should advance an opinion
addressing the following questions: Is
it more likely than not (i.e.,
probability greater than 50 percent); at
least as likely as not (i.e., probability
of 50 percent); or less likely than not
(i.e., probability less than 50 percent)
that any identified bilateral plantar
fasciitis had its onset during active
duty; is etiologically related to or
increased in severity beyond its natural
progression as a result of the activities
performed during physical training with
the Arizona Army National Guard; or is in
any other way causally related to his
periods of active duty, active duty for
training, or inactive duty for training?
Send the claims folder to the examiner
for review. The examination report
should specifically state that such a
review was conducted.
5. The RO should then readjudicate the
veteran's entitlement to service
connection for his bilateral plantar
fasciitis. If the benefit sought on
appeal remains denied, the veteran should
be issued a supplemental statement of the
case (SSOC) which addresses all relevant
actions taken on the claim for the
benefit, to include a summary of the
evidence and applicable law and
regulations considered, since the
issuance of the statement of the case.
The veteran should be given the
opportunity to respond to the SSOC.
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the United States Court of Appeals for Veterans
Claims (Court) for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West 2002) (Historical and Statutory Notes). In
addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
_________________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the Court. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).